The New HIPAA - Questions Answered; Advocacy Update January 8, 2016

On January 6, 2016 the Department of Health and Human Services issued final rules modifying the Health Insurance Portability and Accountability Act (HIPAA). These final rules make explicit that certain HIPAA-covered entities may disclose certain information to the National Instant Criminal Background Check System (NICS), a national data system maintained by the Federal Bureau of Investigation (FBI) to conduct background checks on persons who may be disqualified from receiving firearms based on prohibited categories under state or federal law. The FBI reports that more than 2 million guns sales have been prevented since NICS was created in 1998, and most records in the database come out of state civil court systems and are not protected by HIPAA. The information that would be disclosed would include the identities of individuals who are subject to a federal “mental health prohibitor” that disqualifies them from shipping, transporting, possessing, or receiving a firearm.

1. Who is subject to the federal mental health prohibitor? Among persons subject to the federal mental health prohibitor established under the Gun Control Act of 1968 and subsequent Department of Justice regulations are individuals described in the rules who have been “involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or otherwise have been determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease.”

In addition, the White House has directed the Social Security Administration to issue a draft rule clarifying whether individuals receiving Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) benefits who have a “Representative Payee” to manage their funds should be included in NICS and thereby prohibiting their possession of firearms. Representative payees cover approximately 75,000 people each year who have a documented mental health issue, receive disability benefits and are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent.”

2. Who makes adjudications or commitment decisions that make individuals subject to the federal mental health prohibitor? Under this final NICS rule, only HIPAA-covered entities with lawful authority to make the adjudications or commitment decisions that make individuals subject to the federal mental health prohibitor, or that serve as repositories of information for NICS reporting purposes, are permitted to disclose the information needed for these purposes.

3. What information is disclosed? The disclosure of information is restricted to limited demographic and certain other information needed for NICS purposes. The rule specifically prohibits the disclosure of diagnostic or clinical information, from medical records or other sources, and any mental health information beyond the indication that the individual is subject to the federal mental health prohibitor. Under the final rule, information that could be disclosed includes the patient's name, sex, date of birth, the record documenting the individual's involuntary commitment or adjudication for mental health issues and Social Security number. Law enforcement agencies, (federal, state and local) can access the NICS database for information in connection with various licenses for firearms or explosives.

4. Do clinicians have to report information? As under current law, the new rule does not require treating clinicians directly involved in patient care to conduct the reporting process, instead state agencies will have improved flexibility to report relevant information. Currently, few mental health providers report personal information to NICS.

Spokespersons from the American Psychiatric Association (APA), the American Medical Association (AMA) and National Alliance on Mental Illness (NAMI) expressed the view the President’s plans would not threaten patient confidentiality, while many individual clinicians and legal advocates expressed some reservations. The AMA indicated that their Code of Ethics supports strong protections for patient privacy and, in most cases, requires physicians to keep patient medical records strictly confidential. If there must be a breach in confidentiality, such as for public health or safety reasons, the disclosures must be as narrow in scope as possible. APA President Renee Binder welcomed the President’s announcement and promised to work with the Administration and Congress on expanded mental health funding. Said Binder, “We support the president's efforts to expand background checks (and) propose policies that respect physician-patient confidentiality," This is a change from the APA’s views since 2013, when APA Medical Director and CEO Dr. James Scully Jr. wrote HHS that “the courts are in the best position” to share patient information. Scully then expressed the group's “strong reservations” about even those states whose laws direct certain HIPAA covered entities to report patient information to the NICS. Said Scully, “Requiring direct reporting by clinicians or facilities is likely to disrupt the clinician-patient relationship and interfere with effective treatment.”

AMHCA Pushes Medicare Legislation with Mental Health Legislation Another part of the President’s gun control program includes a request to Congress to appropriate $500 million for increased access to mental health services. The President’s plan for distributing the funding is deliberately vague since Congress is developing legislation to respond to the nation’s epidemic of gun violence by improving the nation’s mental health system. Many Republicans focus on deficiencies in the nation’s mental health system in response to the epidemic on gun violence, but Democrats would also like to address national gun laws, in addition to increasing mental health services. Many Democrats and the White House are dubious that Congress will be willing to appropriate the requested funding, recognizing that Republicans will make the determination to appropriate additional service funds.

Congress is planning to advance mental health legislation from two committees this month, as well as hold a major hearing on comprehensive mental health reform. In the House, the Energy and Commerce Committee is planning to act on Rep. Tim Murphy's (R-PA) bill “Helping Families in Mental Health Crisis Act,” (HR. 2646), which still faces steep opposition from Democrats on the Committee. Republicans believe they have an adequate number of Democratic supporters in the full House to pass the floor. House Speaker Paul Ryan has touted Murphy’s bill as the chamber's response to recent mass shootings. In the Senate, the HELP Committee is expected to take up Sens. Chris Murphy (D-CT) and Bill Cassidy's (R-LA) reform bill. The Senate Judiciary Committee is also expected to hold a hearing on Sen. John Cornyn's mental health and criminal justice reform bill, which faces opposition from Democrats because it includes NRA-backed gun language. Many fiscal conservatives are resistant to adding funds for expanded community mental health services, such as AMHCA’s Medicare provider status amendment or the expansion of Medicaid coverage to more individuals. Nevertheless, AMHCA and our coalition partners continue meeting behind the scenes with congressional offices to urge inclusion of our Medicare provider status legislation (S. 1830/HR. 2759) in any final comprehensive mental health reform package. AMHCA anticipates that consideration of mental health legislation will extend well into 2016, giving an avenue to passage of our Medicare provision. Among other controversies slowing consideration in the House are coerced treatment, expanded funding for Medicaid inpatient services, and patient privacy rights. The Senate still plans to advance a consensus mental health bill, bringing together a number of elements in a bipartisan manner, but they are struggling with disagreements over gun-safety provisions and controversies with the House version.

AMHCA will continue pressing for inclusion of our Medicare provider status bill in the broader “Murphy bill.” The most effective way to make this happen is to generate more grassroots messages to congressional offices urging cosponsorship of our Medicare provider status bill (S. 1830/HR. 2759). Congressional offices tell us they need to hear more support from their constituents for these bills. AMHCA members should continue to use our action alert and resources to prepare grassroots messages in support of Medicare recognition.